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Monday, March 1, 2010

It is in fact the experiential reality of being unable to breathe. So why do we keep seeing the formulation used in the title, rather than the more accurate one? Waterboarding is not simulated drowning, it is actualdrowning. Of course, the process is controlled by the interrogator/administrator/torturer, but that doesn't magically transmogrify "controlled drowning" into "simulated drowning."

The reason I write about this today is that there's an op-ed in the New York Timesarguing that the doctors and other medical professionals involved in the justification and authorization of enhanced interrogation techniques ought to be held to account for their alleged misdeeds. (As neither a medical professional nor an attorney, I'm not going to pass judgment on this claim, but I think the piece is worth a read.) The offending sentence seemed a bit out of place in a column that is aggressively anti-EITs: "The [CIA's Office of Medical Services] did allow that waterboarding could be dangerous, and that the experience of feeling unable to breathe is extremely frightening."

Again, we're not talking about feeling unable to breathe. We're talking about being unable to breathe. Here's what Malcolm Nance, former Navy SERE school trainer and counterterrorism/intelligence professional, had to say on the issue in his thorough critique of waterboarding on Small Wars Journal (entitled "Waterboarding is Torture... Period"):

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and Guantanamo.

No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets.

Whether or not waterboarding constitutes torture is a question that's been debated extensively for at least the last three years, so I'm not all that interested in re-litigating it here. (Nance does a much better job; read his piece.) I just want us all to come to a consensus on the fact that the actualized reality of something is different from a simulation of that same thing.

(While we're on the subject, it's sort of coincidental that just last night I listened to this episode of "This American Life." I should note here that there's almost no relationship between this particular radio program and the point I'm making above, except for the title and general concept: "Simulated Worlds." It's premised on the argument that the desire for hyperreality -- and relatedly, an appetite for simulations and recreations of nearly everything -- is a uniquely American trait. The episode closes with a musing on how "Morning Edition" (NPR's daily morning news show), like all radio news, engages in a sort of Russian-dolls format -- anchor kicks it to reporter, reporter kicks it to guy on the ground, guy on the ground kicks it to actual footage from on the scene: "the actuality," in radio parlance -- that results in the news consumer only getting about a six- or seven-second window into "real life" in every minutes-long news segment. Our hunt for reality and truth keeps getting us less and less of real life. But I digress.)

26 comments:

Perhaps Madhu can give a more authoritative comment, but my understanding is that a doctor has a responsibility to render aid whether the doctor approves of the activity or not. "Aid" can take the form of first aid (for example, at a traffic accident) or ensuring that the willing/unwilling participant is not permanently wounded (such as a doctor at a UFC event). Aren't there also doctors in the vicinity in the case of lethal injections and electrocutions? Do we know or care whether they approve of the activity? Furthermore, unless these doctors have a joint MD/JD and are members of the bar, then who are they to decide whether to participate? Some people think that we were committing war crimes in Iraq. Should my Soldiers have taken it upon themselves to declare the mission a giant crime and refuse to go on patrol? My response would have been, "are you a JAG? No? Well you are a dumbass. Now put your gear on or have fun pulling permanent shit-burning detail."

Schmedlap -- Did you read the op-ed? It sort of seems like you didn't. They're not really talking about the medical personnel who were on hand for the interrogations, but rather those individuals who provided the "medical justification" for use of those techniques, that is, the guys who said "we've reviewed the medical literature and concluded that this is totally ok." Here's the nut section:

When the C.I.A.’s inspector general challenged these “enhanced interrogation” methods, the agency’s Office of Medical Services was brought in to determine, in consultation with the Justice Department, whether the techniques inflicted severe mental pain or suffering, the legal definition of torture. Once again, doctors played a critical role, providing professional opinions that no severe pain or suffering was being inflicted.

According to Justice Department memos released last year, the medical service opined that sleep deprivation up to 180 hours didn’t qualify as torture. It determined that confinement in a dark, small space for 18 hours a day was acceptable. It said detainees could be exposed to cold air or hosed down with cold water for up to two-thirds of the time it takes for hypothermia to set in. And it advised that placing a detainee in handcuffs attached by a chain to a ceiling, then forcing him to stand with his feet shackled to a bolt in the floor, “does not result in significant pain for the subject.”

The service did allow that waterboarding could be dangerous, and that the experience of feeling unable to breathe is extremely frightening. But it noted that the C.I.A. had limited its use to 12 applications over two sessions within 24 hours, and to five days in any 30-day period. As a result, the lawyers noted the office’s “professional judgment that the use of the waterboard on a healthy individual subject to these limitations would be ‘medically acceptable.’”

The medical basis for these opinions was nonexistent. The Office of Medical Services cited no studies of individuals who had been subjected to these techniques. Its sources included a wilderness medical manual, the National Institute of Mental Health Web site and guidelines from the World Health Organization.

I can't give a more authoritative comment, actually. Embarrassingly, I've used "simulated drowning" before, although Gulliver's excerpt is correct that if water is entering the lungs then it must be a drowning. Controlled drowning is more technically correct, I would think. Can't say I know much about the subject, though. I don't think I ever witnessed an autopsy on a drowned person before and can't remember enough of my Spitz and Fisher to remember the definition.

I'll add one more thing, and hopefully expand on it if I have more time, but I think it very odd to consult a medical professional on what would be "medically acceptable" in this setting. What does that even mean? The basic question is a moral, and not medical, one. Is this an example of credentialism run amuck or something? I suppose it's all deciding limits of physical tolerance, and I get that, but it's still very odd.

Well, I am stating this very badly, but Schmedlap's point is well-taken, too.

I'll add one more thing, and hopefully expand on it if I have more time, but I think it very odd to consult a medical professional on what would be "medically acceptable" in this setting. What does that even mean? The basic question is a moral, and not medical, one.

But the question being asked of these professionals is a simple one: does waterboarding result in severe mental pain or suffering -- the definition of torture -- to the subject? If yes, then waterboarding is torture, and is thus illegal. If no, then waterboarding is not torture, and can continue.

Of course there are also moral questions associated with waterboarding. One goes something like this: "Once the procedure is determined to be torture, is it morally acceptable for me to ignore the law and continue to administer it in cases where I deem it vital to national security?" My answer to this question is in almost every imaginable case "no", but others may differ.

Sure, I understand that this isn't cut-and-dry, that it's a judgment call. But it's not like scientists (or more specifically, medical professionals) aren't required to make these sorts of calls on a routine basis.

I understand that different people have different pain thresholds, that it's impossible for a doctor to put him or herself in the mind of another individual, that we all may define "severe" differently. After all, if we didn't, then it's incomprehensible that waterboarding could ever have been justified by anyone, doctor or not.

If we're going with the spirit of the law, then doesn't it seem clear that "procedures designed to disrupt profoundly the senses or the personality" would include basically all of the insipidly-titled "enhanced interrogation techniques"?

One can easily quibble with whether or not the law should forbid these things, but it seems incomprehensible to me that anyone could say with a straight face that the EITs are not "designed to disrupt profoundly the senses or the personality." Isn't that the principal selling point of sleep deprivation, for example?

Sorry Gulliver. This sentence sounded to me like they were present: "... doctors played a critical role, providing professional opinions that no severe pain or suffering was being inflicted." But, it doesn't actually spell it out so maybe they just had the slides emailed to them.

Mahdu actually was correct, though, when she raised the questions regarding the legal definition of torture. This whole "is it or isn't it torture" thing reminds me of the debate over whether the loon who slammed his plane into the IRS building was or was not a terrorist. The words "terrorist" and "torture" don't have any consistent meaning in common use. Whatever one wants to call terrorism is the definition for the moment, until that individual wants to call something else terrorism. They are shape-shifting words.

I suspect most people agree that waterboarding is torture in the non-legal sense of the word. That sheds no light on whether it meets the legal definition. If KSM has not suffered "prolonged mental harm" (what that phrase means is a legal question) then he hasn't been tortured in the legal sense of the word. Regardless, we don't do it anymore, right? So I'm not sure why people even care.

Wait a minute, Schmedlap. Whether "torture" has a definition shared by the globe is immaterial. There is a statutory definition of these prohibited acts: That which is "specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person(...)."

To deny that waterboarding rises to the statutory definition of torture, then one would need to argue that the act 1) doesn't cause prolonged mental harm stemming from "the threat of imminent death."

Per statute, one could not only say that waterboarding could lead the victim to believe he or she was drowning to death, but could be extended if he or she watched the practice being inflicted on another person!

The very efficacy of waterboarding is based on the belief in the mind of the victim that he or she is suffocating to death. The threat of imminent death is why it is said to work. It indicts itself, per statute.

1) An underlying assumption of the efficacy of waterboarding is not a "fact" until a trier of fact says it is. The fact-finder may reject the assumption as erroneous. If the assumption were not rejected, this would only be a general proposition. It would not clarify whether KSM or the other douche bags suffered prolonged mental harm or even if they truly thought they were going to die, rather than be kept alive and continually subjected to this treatment.

2) You cannot just inject common understandings of terms like "physical or mental pain or suffering." Those are words that have legal meanings hammered out through decades of frivolous lawsuits and they have different meanings in different types of proceedings and from jurisdiction to jurisdiction. Any determination about what those words mean in this situation will need to be clarified and then expert witnesses would be needed to determine whether the state of mind of each douche bag fits those definitions.

3) We don't know what the legal definition of "prolonged" is in this situation. Remember when Clinton conditioned a response on the meaning of "is"? Is "is" "is" or is "is" something else? More than in any other setting, words mean things in court. Of course, those meanings may sometimes be wholly unrecognizable to the rest of us.

And just to be clear, one's opinion on whether waterboarding fits the legal definition of torture has nothing to do with whether one thinks that "torturing" prisoners is a good or bad policy decision. I think a strong case can be made that, even if waterboarding is not torture, the negative impacts of doing it outweighed the positives. That's just one more reason why I wonder about the concern over this. Are we going to prosecute Dick Cheney if a judge says that this is torture? Are we going to start waterboarding people again if a judge says that it does not meet the legal definition of torture? No to both, so why bother?

All that is fine and good, but if you'll remember, this post's entire purpose was to express my frustration at the repeated suggestion that waterboarding is "simulated drowning," or that is is "the experience of feeling unable to breathe." It is neither. It is real, legitimate (if controlled) drowning, and it is the literal experience of being unable to breathe, not a mere "feeling."

Any "concern" over the issue beyond that is mostly irrelevant to this post. That said, I think it matters/ed to people because until the prohibition of these techniques by the president (and even after), there was some controversy over whether or not they should be allowed.

Schmedlap: First of all, if I was in your command in Iraq and you ordered me to torture a prisoner, I would be obliged by law to refuse your orders. Theres no ambiguity about it, its the whole principle of Nuremberg. Second, there is legal precedent that defines Waterboarding as torture. Japanese prison guards were prosecuted for it after WW2, and sentenced. SERES trains for it as part of their anti-torture procedures. In other words, for a doctor, or any other person in a chain of command, to accept such an act would indicate that they are criminals and should be judged as such. I cant see any way around it.

What is sickening is that they will throw us a few Lyndie Englands and nobody with any higher position will get touched. All the architects and decisionmakers will continue to earn fat bucks, while a few scapegoats will be sacrificed. Fun Fact for the republicans out there: It was Ronald Reagan who signed in the anti-torture bill that everybody is claiming is too liberal...

A little amateur sleuthing (because I'm not boarded in Forensic Medicine, had only a brief exposure during residency, and got rid of my Spitz and Fisher Medicolegal Investigation of Death textbook years ago) shows that the definition of drowning hasn't always been so standardized, leading to a conference in 2002 or thereabouts in order to pin down the exact definition! The definition I looked up - didn't save the link, alas - stated that water should reach or "breach" the airway. Does this mean water or liquid doesn't have to enter the lungs, but that you simply need to start aspirating or breathing water? Anyone lurking who knows such things? More research needed.

There are, apparently, no pathognomonic features of drowning. I guess it's impossible to tell if someone has first been suffocated, and then dumped in the water? If you are in the water long enough will the lungs take on water in such a way as to make the distinction impossible?

I enjoyed my Forensics rotations, in theory and even in practice, but it reached a point where I knew I couldn't do that stuff for a living. It's so interesting to learn, though. I remember morning reports and photos of bullet wounds and the attendings grilling us as to wheter they were entry or exit wounds.

*Another caveat - I might be getting a bunch of this stuff wrong. Don't trust and always verify.

What's it like to be the doctor asked about this kind of stuff? Is there a peer-reviewed literature on the "acceptable" level of suffering and pain? Seriously, what documents were they supposed to refer to?

Genuine question. Gulliver, it's NOT something most docs do every day. Usually, you try and relieve pain when you can, not try and figure out the amounts that are "acceptable."

Anyone know any references? I found one article when I searched the New England Journal of Medicine Website, but that can't be correct, can it?

I want them to come up with a definition of burning. I'm sure it would be something to the effect of "burning is the process of experiencing rapid combustion of body tissues from close proximity to extremely high heat." I guess I don't see what the definition clarifies.

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